Rethinking the U.S. Policy on the International Criminal Court

Hoyt, Brian A., Joint Force Quarterly

Changes to U.S. strategic policy since September 11, 2001, have shifted the focus of American security efforts toward building and maintaining strategic partnerships, as well as increasing the capacity of partner nations to respond to crises and contribute to local, regional, and international stability. These themes run throughout U.S. national security policy documents--including the National Security Strategy, National Defense Strategy, National Military Strategy, National Strategy for Maritime Security, and Quadrennial Defense Review--and the military Services are being reshaped accordingly. Changes in forces include an increased emphasis on language training and cultural awareness, greater engagement/theater security cooperation, and organizational changes to support more training and engagement with partner nations. The President's 2008 budget submission to Congress includes considerable funding in support of diplomatic and military programs fostering improved international partnerships. (1)

Unfortunately, U.S. policy on the International Criminal Court (ICC), including the associated American Service-members' Protection Act (ASPA) of 2002 and Nethercutt Amendment, runs counter to this strategic partnership theme. ASPA and the Nethercutt Amendment have strained U.S. relations with many partners and have caused significant damage at the operational and strategic levels. At the operational level, ASPA has harmed military-to-military relationships, particularly in the case of international military education and training. At the strategic level, U.S. policy on the ICC separates the United States from the overwhelming majority of the world's modern societies and is further isolating America from its partners and potential partners. The official stance on the court impedes the ability of the Government to carry out the guidance contained in the policy documents listed above, with the strategic consequence of contributing to the decline of U.S. influence and image in the world.

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Diminishing American influence has opened the door for other nations to fill the void. Of particular concern in the Western Hemisphere are the increasingly active political and economic roles played by China and Venezuela. The Pew Research Center's Global Attitudes Project, Gallup World Study, and other public opinion polls show that America's image has steadily declined. (2) The United States is increasingly viewed as unilateral, arrogant, self-serving, and hypocritical when its principles and national interests collide. The 2006 Gallup World Study confirmed what many already suspected: U.S. policies, not U.S. values, are to blame. (3) Those who profess to hate America actually hate its policies--good news for the United States, because policies can be changed.

Initial U.S. concerns about the ICC, while well founded, have not materialized in the 5 years the court has been in existence. Over this period, many cases that have been investigated by the ICC have demonstrated both its effectiveness and impartiality. Given this track record, it is now appropriate to reappraise American policy. Research has shown that the organization is not well understood in the United States, particularly by the military. (4) This article examines Government policies related to the ICC and how they have affected U.S. interests. In an attempt to correct common misperceptions, the article also analyzes the major arguments for and against current policy on the ICC and related legislation.

the International Criminal Court

The United Nations (UN) Diplomatic Conference of 1998 drafted the Rome Statute of the International Criminal Court. At that time, the United States was a leading proponent of the ICC and heavily involved in drafting the statute. The final vote at the conclusion of the conference was 120 nations in favor, 7 against, (5) with 21 abstaining. The United States voted against the statute, primarily due to concerns about legal protections for American Service-members deployed overseas in a peacekeeping role. …

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